163 Mich. 210 | Mich. | 1910
Sarah W. McMaster, whose maiden name was Harlow, died at Grass Lake, in Jackson county, Mich., August 28, 1907, aged 81 years. She was a widow; her husband having died in 1895. She left an estate, consisting principally of personal property, valued at more than $32,000, owing, practically, nothing. An instrument, executed by her, dated April 21, 1906, was offered for probate as her last will. It was admitted in probate court after a contest made by two nephews and heirs at law, named Arthur and Byron Harlow, but in the circuit court was found by a jury not to be her last will. The nephews asserted the mental incompetency of the testatrix to execute a will and that she was unduly influenced with respect to its terms by Edmund L. Cooper, the proponent, who was nominated executor in the will, was given a specific legacy of $1,000, and was also made the residuary legatee. Mrs. McMaster had no children. Her brother, John Harlow, lived in Grass Lake. Another brother, Oscar Harlow, died in 1890, and his sons are the contestants. Mrs. McMaster also executed, on April 21, 1906, a power of attorney by the terms of which Edmund L. Cooper was empowered to care for her property, transact all of her business, including the collecting, lending, and investment of her money, the assignment and discharge of mortgages, the management and control of real estate. The instrument proposed as her last will bequeathed to each of the nephews above named $5,000 to be paid in annual installments of $1,000. There was a
“This provision is made because of the many acts of kindness of said Cooper, for favors shown to me by him, and for work and labor performed for me by him, which services have been rendered freely and without proper compensation.” ,
It is the testimony of Mr. Cooper that he received a note from Mrs. McMaster asking him to come to her house; that he went to her house on the same day and learned from her that she desired him to prepare her last will. She had made a memorandum, upon paper, indicating her wishes in that behalf, and on account of the nature of the bequest to the church he advised her that he did not consider himself competent to prepare the will. She asked him if he could get some one to prepare it. He mentioned the name of a person, and did in fact take a memorandum made by himself to a suitable person who prepared the will and mailed it to Cooper. He took it to Mrs. McMaster, left it with her, and later, on the same day, went again to her house, when the will was read to her by him and was executed. The witnesses were suggested by Mrs. McMaster and were invited to her house by Mr. Cooper. The will was not read by them or in their presence. The person who prepared the will prepared the power of attorney, and one of the witnesses to the will also witnessed the execution of the power of attorney. The will, after its execution, remained with the testatrix until June 17, 1907, when, with some other
This court is met by the objection that most of the points argued in the brief for proponent are based upon no special assignment of error. Supreme Court Rule 11. For example, the thirty-fifth and the fortieth assignments of error, the alleged basis for the most considerable arguments presented, read as follows:
“(35) The circuit judge erred in refusing to give the following requests of proponent, to wit: First, second, fifth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-fifth.”
“(40) The circuit judge erred in charging the jury as stated in the seventh, ninth, forty-seventh, forty-eighth,*216 fifty-sixth, fifty-seventh and fifty-eighth, and fifty-ninth paragraphs of his charge, on the subject of undue influence and the burden of proof.”
. The charge of the court appears in the record in paragraphs numbered consecutively from 1 to 73. These assignments may be taken distributively, since the requests appear, numbered, in the bill of exceptions, and the references to portions of the charge are as conveniently made by numbered paragraphs as by repetition of the language used. The brief affords the aid the failure to do which was criticised in Duff v. Judson, 160 Mich. 386, 391 (125 N. W. 371), and as to the fortieth assignment each paragraph of the charge referred to relates to a rule of evidence precisely opposed to the one which proponent was insisting should be given to the jury. See, also, Niles v. Rhodes, 7 Mich. 374.
It has been stated that the case was made to revolve about Mr. Cooper and his relations with the testatrix. I am impressed that if Mr. Cooper had not been made residuary legatee, if relatives or if charities had received the portion of the estate which comprises the residuum thereof, there would have been no contest about her will, because there is very little testimony, other than the will itself, considered with the relations of Cooper and the testatrix, which can be said to have any tendency to prove the testatrix incompetent to make a last will, and none other tending to prove the exercise of undue influence. The will itself and the circumstances attending its execution lead one, naturally, to inquire: First, whether, Mrs. McMaster understood the effect of the instrument j ánd, if she did, second, what prompted her to give to Mr. Cooper nearly one-half of a considerable estate, solemnly assigning as a reason therefor a fact which did not exist and could have been considered by her as existing only through misapprehension ? The inquiries suggested were pursued at the trial with such result that the court, in my opinion, was required to submit to the jury the question whether undue influence had been exercised in procuring
The court instructed the jury that proponent was bound to prove that the testatrix was competent to make the will, and, in ordinary cases, the contestants were bound to prove undue influence, if undue influence was asserted. They were further instructed with respect to the burden of proving undue influence:
“ Whether this rule is reversed or not in such a case as this, the connection of Mr. Cooper with the making of this will, and its execution, and the facts of his being a large beneficiary, and is named as executor, as well, also, as the relations he entered upon toward Mrs. McMaster at the time the will was executed and such as he sustained toward her at that time to the extent that these things are undisputed in this case, make up such a situation as calls upon Mr. Cooper for satisfactory explanation, and he should show to your satisfaction that it was in all respects fair and honest. The burden of doing this is upon him, and, if he has failed to satisfy you by his explanation that it was fair and honest, you should find against the will without reference to any other question in this case, or any other instruction given you, and in fact need proceed no further with your deliberations. If you do not so find, you should then consider other elements in the case.”
“After the proponent had sworn the two witnesses to the will, the contestants took the case. At that time I struck out testimony already given as to what Cooper did and said after the funeral, and at the bank, about the will or his knowledge or lack of knowledge of it, and refused to admit other like testimony at that time, thinking the rules of law excluded it, but holding it could be used only to contradict Mr. Cooper, provided he made denials of such claims as to his actions or statements. If my first view was correct, I should caution you not to use such evidence except to enable you to judge of the credibility of Mr. Cooper’s testimony as a witness. But I now believe I took too narrow a view of the legitimate use of such testimony and ought to have received it in the first instance. That testimony is now in the case, and you have the right to consider it not only as bearing upon Cooper’s credibility as a witness, but also as substantive evidence of what he did and said, as affording such light as you deem it may reflect on the character of the will and the way it came to be made. Mr. Cooper, at the time of the reading of the will, was in the presence of the heirs at law, who would take the property had there been no lawful will, and some of the legatees who were interested on that account. Apparently he produced the will and was voluntarily reading it for the information and benefit of those interested. He was himself the largest beneficiary; he was named as executor in the will. He was not a relative. He was the trusted agent of Mrs. McMaster and in charge of her property, much of which was then in his custody. He was asked certain questions by those entitled to know. If Mr. Cooper was willing to speak at all or assume to give any information or make any statement, it was his duty to speak the truth. If you believe that he made the statement testified to, it is conceded that he concealed his actual knowledge and made positive false statements as to his lack of knowledge of what was in the will, or that he was a beneficiary, as to his knowledge of the draftsman or how it came to be drafted, and also at that time, or some other time or place not remote, did not disclose fairly his knowledge as to the value or extent of her estate and the amount he would be likely to derive from*219 the residuary clause. I think, in view of the circumstances, if he spoke at all, he should have spoken the truth, and not have resorted to any subterfuge, concealment, or misstatement. He should have been fair and frank. The question then arises: Why did he do this ? You have the right, and it is your duty, to ask and consider this question. And I think those people had the right to ask questions as to the will and the estate and to have such questions answered by Mr. Cooper so far as he could fairly answer them, and answer truthfully. He chose, for some reason, not to do so. Why ? What was the reason ? Mr. Cooper has explained on the stand or testified in reference to what he did and why he did it. You are the judges as to how satisfactory or sufficient such explanation is. And in considering that answer or those explanations or reasons, you have the right, in the same' connection, to take into account Mr. Cooper’s experience as a business man and in respect to estates and wills, his character and standing in the community, his relations to the will and to the testatrix, and his interests and the extent of such interests, and whether they might— that is, his interests — be involved in or affected, and, if so, to what extent, by a truthful disclosure, to the end that you rightfully discern so far as possible what the real motive was that induced a man of Mr. Cooper’s standing in the community to depart from the truth or attempt to suppress or conceal the truth, and in such a way, upon such an occasion. Was it because he feared the truth would imperil his interests, or some other or lesser motive? If from fear, what was there to fear from the truth, and the entire truth ? Or was it for some trivial or unimportant or merely imaginary or fanciful reason that he was ready to make untruthful statements tending to mislead those who were entitled to correct information, if entitled to any from him ? I state this circumstance or episode in the course of his dealings in respect to this will, not for the purpose of intimating anything of its significance or lack of it, but because it is your function and duty to consider it and give to it its real weight or influence, but no more. Do not forget or overlook what Mr. Cooper says about it. Consider his own statements and explanations in reference to it and in connection with the circumstances and situation that confronted him, as well as what he did and said at the time, to the end that you assign to it only such meaning or significance as actually and justly*220 should attach to it. And you may also consider it in connection with the other evidence as to his relations to the making of the will, the part he took in it, and his interests in it, to which I have already made reference, and unless upon the whole you are able to say that the evidence on both of these phases of Cooper’s conduct, so taken in connection, satisfies you upon the whole that the will is not the product of undue influence exerted by Cooper upon the testatrix, but is free from such infirmity, your verdict should be against its allowance. I say this because I believe it to be the law that Mr. Cooper has the burden of satisfying you that the will in its making was in all respects fair and honest, and also of explaining his conduct at the time of the reading and also statements about the time of the funeral so far as you deem them proven, so as to warrant a favorable inference or conclusion, or at least prevent your drawing of inferences or conclusions fatal to his contentions. If his connection with the making of the will is not shown to you satisfactorily to have been fair when considered in connection with these latter untrue statements or declarations, so that upon the whole, all taken together, you are not able to say the will is not due to his undue influence, your verdict should be against it, and for the contestants, even if you could not so find from either of these circumstances or considerations considered separately, as under those circumstances it is his duty to show that the will when made was free from the alleged infirmity of undue influence on his part. If he has so explained these things to your satisfaction, then you should not find against the will on the ground of his exercise of undue influence for either of those reasons, or those reasons combined.”
I am impressed that, in that portion of the charge which is first above recited, the learned trial judge intended to state a rule in harmony with the decisions of this court and with the weight of authority. In re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523); Dudley v. Gates, 124 Mich. 440, 446 (83 N. W. 97, 86 N. W. 959). The trouble with the instruction is that it does not also advise the jury, as it should have done, that if, in view of all circumstances disclosed, giving effect to the presumption referred to, they are not convinced that the provisions of the will favorable to Mr. Cooper were the result of fraud
To the portion of the charge last above set out, other objections are made. It is said the court gave to the testimony referred to in the charge an effect forbidden by
“ Some testimony has been introduced as to statements made by Mr. Cooper subsequent to the making of the will, and particularly at, or about, the time that the will was read; but I charge you that these statements, if you find that they were made, have no tendency whatever in this case to establish any undue influence or fraud practiced upon Mrs. McMaster at the time of making her will, and should not be considered by you, and no weight should be given them, in the consideration of the question of undue influence, and neither should any weight be given by you to any acts or conduct of Mr. Cooper at or about the time of the reading of the will so far as the question of undue influence is concerned, as they have no bearing upon that subject.”
The testimony was competent if for no other reason than that it tended to prove statements of the witness contradicting material testimony already given by him at the trial. Being competent for this purpose, the rale of O’Connor v. Madison would not require it to be excluded. Whether the jury should have been instructed to consider it only as it was believed to affect the credibility of Mr. Cooper is a more serious question. I am of opinion that an instruction to that' effect would have been error. Whether the disposition of property made by the testatrix was the natural operation of the mind of the testatrix, or the result of fraudulent contrivance or undue influence of Mr. Cooper, depended, iij view of the presumption indulged, and which has been referred to, upon facts which he testified he had knowledge of and which he had related. If he had made statements denying or concealing such
The jury was .instructed that they might consider the provisions of the will with respect to both issues submitted to them, and the court directed attention to the reason given in the residuary clause thereof for the provision there made. The court was requested to say that the provisions of the will standing alone had no tendency to show undue influence or fraud, and that they should not regard the disposition of property which was made therein as any evidence of undue influence. The cases of In re Hoff-
The other errors. assigned and argued have been considered. In view of a new trial, it is not important that they be, all of them, noticed in this opinion. Some rulings complained about are likely to be required upon a new trial, and to these I refer. Certain witnesses, after stating their observations of the testatrix, were permitted to express an opinion as to her mental competency. It is often a nice, always an important, matter to decide whether opinion evidence ought to be received from nonprofessional witnesses. It was proper to. show the age, and the physical and mental condition, of testatrix as it was observed by the witnesses, and I am of opinion that in neither case was the opinion expressed warranted by the observations and conditions stated. Nor is it likely that the jury considered them of much value.
Testimony of the financial condition and the health of some cousins of testatrix was received over objection; the purpose of the testimony being, evidently, to show that they were in needy circumstances for whom testatrix might have made some provision in place of the one to Mr. Cooper. Their exact relationship to testatrix is not shown, nor that they, or any of them, had particular or any claim upon her bounty. I think this testimony should have been excluded. In re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 372). It was error, also, in view of the issue presented, to exclude testimony tending to prove
Contestants were properly entitled to subject the proponent to a searching cross-examination, and while it might properly have been limited, upon some objections, where it was not, it cannot be said that reversible error was committed. In view of the residuary clause, it was not error to permit the witness to answer the questions:
“Q. Then there was no reason in the world, as far as you know of, why she ever made you a legatee under her will ?
“A. I don’t know why she did.
“ Q. I say there is no reason in the world why she should have done so, as far as you know ?
“A. No, sir; that I know of.”
The twenty-first request to charge was properly refused. Standing alone, the conversation referred to therein would have had no tendency to establish either mental incompetency or undue influence. It did not stand alone, when the request was preferred, and, if the jury believed that such a conversation took place, it was proper to consider it with other testimony in determining the issues involved.
The judgment is reversed, jvith costs to proponent, and a new trial granted.